No. 14956 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN RE THE MARRIAGE OF 

JAY F. OWEN, 

Petitioner and Respondent, 

IDALENE OWEN, a/k/a 

IDALENE L. OWEN, 

Respondent and Appellant. 

Appeal from: District Court of the Sixteenth Judicial District, 

Honorable Alfred B. Coate, Judge presiding. 

Counsel of Record: 

For Appellant: 

Berger, Anderson,Sinclair & Murphy, Billings, Montana 

For Respondent : 

William F. Meisburger, Forsyth, Montana 

!jT!- 5 - * 

LC. - ?.C!:? 

Filed: P 

Submitted on briefs: February 27, 1980 

Decided: APR I - f9@ 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from a judgment entered in the 

Rosebud County District Court, Sixteenth Judicial District, 

disposing of the marital property of the parties. 

The parties herein were married on November 30, 1948. 

At the time of the marriage the husband owned a ranch near 

Ashland, Montana. This ranch was sold after the parties' 

marriage and the proceeds used to acquire the parties' current ranch property from the wife's parents. The ranch was 

purchased in the joint names of the parties in 1949. During 

the marriage the parties worked together on this ranch. In 

1952 an additional 172 acres was purchased as an addition to 

the ranch. A house was built on this property during the 

same year. 

In March 1978 respondent husband petitioned for dissolution of the marriage. The dissolution was granted without 

contest, but the District Court in its decree reserved the 

property division for later adjudication. Trial was held 

on this matter on April 16, 1979. After making findings of 

fact and conclusions of law, the District Court entered 

judgment on May 25, 1979, effectively rendering a 60/40 

percent split of the marital property, respectively between 

the husband and wife. From this judgment the wife appeals. 

The issues presented to this Court for review are as 

follows : 

1. Did the District Court err in its findings and 

conclusions that the husband had contributed 60 percent and 

the wife 40 percent to the accumulated marital assets? 

2. Did the District Court err by not giving sufficient 

weight to the contributions of appellant? 
3. Did the District Court err by abusing its discretion in concluding, as a matter of law, the method of purchase of the marital estate, or in failing to allow appellant 

the benefit of meeting a good faith party purchase offer? 

4. Did the District Court err in failing to consider 

respondent's dissipation of assets? 

5. Did the District Court err in failing to award attorney fees to appellant? 

The substance of this appeal is whether the District 

Court abused its discretion in the distribution of the marital 

estate. 

"It is well settled in Montana that a district 

court has far reaching discretion in resolving 

property divisions and its judgment will not 

be altered unless a clear abuse of that discretion is shown. . . The criteria for reviewing 

the district court's discretion is: Did the 

district court in the exercise of its discretion 

act arbitrarily without employment of conscientious judgment, or exceed the bounds of reason 

in view of all the circumstances." (Citations 

omitted.) Zell v. Zell (1977), 172 Mont. 496, 

570 P.2d 33, 35. 

Appellant contends that it was an abuse of discretion 

for the District Court to only award her 40 percent of the 

marital property instead of the one-half interest she sought. 

She contends that her contributions as a homemaker, as well 

as ranch hand and handy person, when coupled with respondent's dissipation of marital assets, entitle her to a 50 

percent share of the marital property. 

"Although the District Court may equally divide 

the marital assets, such a distribution is not 

mandated by section 40-4-202, MCA. . . Section 

40-4-202 is flexible and it vests a good deal 

of discretion in the District Court . . . We 

have stated, before and after the adoption of 

the statute, that each case must be looked at 

individually, with an eye to its unique circumstances. . . " (Citations omitted. ) In Re Marriage of Aanenson (1979)r Mont. - 598 

P.2d 1120, 1123, 36 St.Rep. 1525. 
The duty of the District Court is to consider the 

statutory criteria and equitably apportion the marital 

assets. To accomplish this, it should consider the duration 

of the marriage and the age, occupation, amount and sources 

of income, vocational skills, employability, estate, and 

the liabilities and needs of each party. In Re Marriage of 

Aanenson, supra, 598 P.2d at 1123. 

We find that the District Court here properly followed 

the dictates of section 40-4-202, MCA. The findings of a 

trial judge will not be disturbed on appeal where they are 

based on substantial though conflicting evidence, unless 

there is a clear preponderance of evidence against such 

findings. Cameron v. Cameron (1978), - Mont. , 587 

P.2d 939, 35 St-Rep. 1723. Here, the findings of the District Court are based on substantial evidence and the evidence does not preponderate against them. The District 

Court, therefore, did not abuse its discretion in apportioning the marital estate. 

Appellant's next contention essentially questions the 

District Court's valuation and method of purchase of the 

marital property. Appellant seeks to preserve and maintain 

the family ranch and submits that this Court has approved 

the desirability of allowing her to do so, most recently in 

In Re Marriage of Jacobson (1979), - Mont. - , 600 P.2d 

1183, 36 st.~ep. 1773. She argues that the District Court's 

distribution of the marital property and valuation thereof 

prevent her from purchasing the ranch. 

A court in distributing the property of the marriage 

is to consider the current value of all property acquired 

during the marriage. Kruse v. Kruse (1978), - Mont. I 

586 P.2d 294, 298, 35 St.Rep. 1502. The ~istrict court did 
precisely that here. It accepted testimony, albeit conflicting, as to the current value of the property before concluding the property was worth $566,200. We find that this 

procedure was not unreasonable. 

Appellant is correct that Montana cases have accepted 

the premise that a ranch or farm should be kept intact and 

operated as a unit. This policy is reflected in the following decisions involving the disposition of farming and ranching property: In Re Marriage of Jacobson, supra; In Re Marriage of Brown (1978), Mont . , 587 P.2d 361, 35 St.Rep. 

1733; Biegalke v. Biegalke (1977), 172 Mont. 311, 564 P.2d 

987; Hunnewell v. Hunnewell (1972), 160 Mont. 125, 500 P.2d 

"It must be remembered that the primary right 

to be considered in disposing of marital property 

is the right of each party to an equitable apportionment of the marital assets. While it is 

the policy of the courts of this state to avoid 

splitting up a ranch or forcing its sale where 

there is any reasonable alternative, that policy, 

however commendable, cannot be used to override 

[a party's] right to an equitable share of the 

marital property." In Re Marriage of Jacobson, 

supra, 600 P.2d at 1187-88. 

In the present case both parties were given the option 

to buy the other's respective share of the ranch provided 

that the right be exercised within six months of the judgment. 

Other than this condition, it was left up to the parties to 

reach their own terms on a purchase. We can find no abuse 

of discretion in the District Court's methods. 

The final contention of appellant is that the District 

Court erred in failing to award her attorney fees. 

Section 40-4-110, MCA, provides: 

"The court from time to time, after considering 

the financial resources of both parties, may 

order a party to pay a reasonable amount for 

the cost to the other party of maintaining or 
defending any proceeding under Chapters 1 and 4 

of this title and for attorney's fees, including 

sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment . . ." 

Here the District Court, after considering the financial 

resources of both parties, determined that each should bear 

their own legal costs. It was not an abuse of discretion to 

do so. 

The judgment of the District Court is affirmed. 

Justice d byWe concur: 

Chief ~usti%e 

w Q& 0. 

Justices